Capture & Academic Punitive Damages Research

Today’s punitive damages decision in Exxon is a wild piece of work, which tears the remaining guts out of punitive damages practice in the United States, and I’m still digesting it. But on the first read, one particular footnote from Justice Souter’s majority opinion stood out. In a section of the opinion relying heavily on Ted Eisenberg, Michael Heise, Martin Wells, Paul Hannaford-Agor, Neil LaFountain, G. Thomas Munsterman, and Brian Ostrom’s work on the variance in punitive damage awards, the Court takes a strong shot against Cass Sunstein and others who have studied juries in the laboratory. Here’s what the Court said about that work:

The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by

I agree with this skepticism about these particular mock jury studies, as I argued here, and here, and as Neil Vidmar, Denise Antonili, Richard Lempert, and others have discussed. But I was still fairly shocked to see the Court acknowledge the problem of deep capture in such an open way.

By the way, the fact that the Court et al.’ed the punitive damages empirical work (led by the ELS-folks at Cornell) is more evidence of my thesis that the bluebook hurts interdisciplinary contributors by reducing the recognition of their work.

[Update: For a defense of the Exxon-funded studies, and more thoughts about the footnote, check out Rick Hasen’s post.]

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Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

Apropos of Rick Hasen’s post, he says “Indeed, when such research appears in an expert report subject to cross-examination, I assume the Court has no problem relying upon the evidence. So why should it be different when a litigant funds the research, particularly if the research has gone through peer review and of course if the funding source is disclosed so that the opposing side may probe for bias?”

I admit I’m not a litigator, but isn’t there a non sequitur in this reasoning? Experimental research about juries isn’t usually going to the subject of expert testimony in a jury trial. At the appellate level there isn’t any opportunity to cross-examine the researchers. Peer review and disclosure of funding sources don’t constitute a substitute for cross at the trial level — experts are often cross-examined about their published peer-reviewed papers. I think the Court made a good call. Am I missing something?

For what it’s worth, I read the footnote very differently – not as a “strong shot” or even “skepticism” against those articles. Instead, the Court took the time to point lawyers and other courts towards those articles, and to say (at least to imply) that the only reason the Court wasn’t relying on them was because of who the particular litigant was in this particular case. Rather than “strong shot,” it’s more like “hey read these fascinating articles, even though we are so punctilious that we can’t actually rely on them here.” In this sense, the footnote is one of the ways that the Court – in my reading – was using the narrow world of maritime law in an attempt to foster change in punitives law more broadly. I hate that, but others may not.

The Sunstein footnote needs to be taken with more than a grain of salt, as does the discussion in the text that there is not really a big problem in the American legal system with swelling punitive damages. As a prior contributor (Sam Heldman) indicated, the Court hardly seems to be skeptical of the results of the Sunstein et al. studies, but rather seems uncomfortable indicating any reliance upon them. The fact is that the Court says it believes some control is needed, and then it selects an unusually restrictive and rigid means of providing that control. So while the Court may like the idea of looking well-read, signing on with Eisenberg and other social scientists, and displaying a judicious skepticism about corporate-funded research, the reality of what emerged from that discussion does not conform well to what the Eisenberg side would typically infer about the appropriateness of appellate court intervention. On the contrary, a ratio of 1:1 (with a footnote follow-up about how this might even be the right limit constitutionally for class actions) makes the Court look like the American Tort Reform Association is its primary source of empirical information on the current reality of punitive damages. I am commenting only on the irony of that footnote (and the plausibility of Heldman’s interpretation), not on who is right about the empirical information.

[…] decision on the Exxon punitive damages claim. Concurring opinions had an interesting note on the court’s refusal to rely on some studies because they were funded by Exxon. (Thanks to TortsProf for the link). At Mass Torts they consider whether the 1:1 rule helps with the […]